TSA, Terrorism, and Civil Liberties

My new study on the Transportation Security Administration mainly focuses on the agency’s poor management and performance. The TSA has a near monopoly on security screening at U.S. airports, and monopoly organizations usually end up being bloated, inefficient, and providing low-quality services.

The study proposes contracting out or “privatizing” airport screening, which is the structure of aviation security used successfully in Canada and many European countries.

I briefly discuss some of the civil liberties problems surrounding TSA. Note that Cato’s Jim Harper also addresses those issues in his work, as does Robert Poole of Reason Foundation. I noticed this recent blog post by Poole that nicely summarizes some of the realities of TSA, terrorism, and civil liberties:

A couple of years ago Jonathan Corbett, a tech entrepreneur from Miami, posted videos online showing him successfully passing through TSA airport body scanners with a metal box concealed under his clothing, seeking to demonstrate that the scanners are an ineffective replacement for walk-through metal detectors for primary screening. In 2010 he filed a lawsuit contending that body-scanning and pat-downs are both unreasonable searches that violate the Fourth Amendment.

As part of the discovery process, TSA provided Corbett with 4,000 pages of documents, many of them classified. He was allowed to produce two versions of his brief, one containing extracts of classified material, and available only to the court, and a heavily redacted version which could be made public. But as several news sites reported last month, a clerk in the US Court of Appeals (11th District) mistakenly posted the classified version online, and it was quickly noticed and reproduced on various websites. Although the court issued a gag order prohibiting Corbett from talking about the classified material, there was no way to stop others from doing so.

Among the things we’ve learned from TSA Civil Aviation Threat Assessments that Corbett cited in his brief are the following:

“As of mid-2011, terrorist threat groups present in the Homeland are not known to be actively plotting against civil aviation targets or airports; instead, their focus is on fund-raising, recruiting, and propagandizing.”

No terrorist has attempted to bring explosives onto an aircraft via a U.S. airport in 35 years, and even worldwide, the use of explosives on aircraft is “extremely rare.”

There have been no attempted domestic hijackings of any kind since 9/11.

The government concedes that it would be difficult to repeat a 9/11-type attack due to strengthened cockpit doors and passengers’ willingness to challenge would-be hijackers.

Based on these points, Corbett argues that primary-screening searches via body-scanners or pat-downs are unreasonable under the Fourth Amendment. He agrees that although those searches have not turned up any would-be terrorists, they have detected illegal drugs. But that is irrelevant to aviation security, which is the only purported rationale for such intrusive searches without prior probable cause.

Corbett does not directly address whether the whole array of TSA airport screening measures may have deterred attacks that might have happened without those measures in place. But that is the kind of question that can be—and has been—assessed quantitatively by security experts such as Mark Stewart and John Mueller, whose work I have cited several times in previous issues of this newsletter. And those assessments suggest that body scanners and Federal Air Marshals, among other measures, cost vastly more than they are worth.

Whatever the outcome of Corbett’s suit—and I hope he prevails—Congress needs to take a hard look at the cost-effectiveness of much of what TSA is doing, in light of the revelations inadvertently made public by this case.”

Poole has done superb work over the years, not only on airport screening, but also on airport and air traffic control privatization. Bob’s work can be found here, and our joint article on airports and ATC is here.